Plaintiff v Defendant

Supreme Court of Victoria|2011-06-06|Before: J FORREST J

PRACTICE AND PROCEDURE - Application - Proceeding to declare the defendant a vexatious litigant - Adjournment of proceeding - Adjournment granted - Injunction granted pending further hearing of matter - Whether medical condition sufficient ground for adjournment - Section 21 Supreme Court Act 1986.

2 On 14 December 2010, the hearing of the s 21 application was set down for 6 June 2011 on an estimate of a three to five day hearing.

3 On 2 June 2011, Ms Bahonko filed a summons seeking an adjournment of the proceedings on the basis of her ill health.

4 The Attorney-General neither consented to nor opposed the application. In the event that it was granted, the Attorney-General sought an injunction restraining Ms Bahonko from commencing or continuing proceedings in this Court, an inferior court or any tribunal until the determination of this proceeding.

5 I think that Ms Bahonko's application to adjourn the proceedings should be granted, but only on the terms suggested by counsel for the Attorney-General. My reasoning for doing so is now set out.

Section 21 of the Supreme Court Act

6 Section 21 of the Supreme Court Act 1986 relevantly provides:

"(1) The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant.

(2) The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has--

(a) habitually; and

(b) persistently; and

(c) without any reasonable ground--

instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.

. . . "

Background to the s 21 application

7 The s 21 application was issued on 8 September 2010. Essentially it sought that Ms Bahonko be declared a vexatious litigant.

8 The substance of the application is that since 2004 Ms Bahonko has commenced seventeen proceedings (including appeals) in various Victorian courts and VCAT. Thirty-one proceedings have been issued by Ms Bahonko in the Federal Court and High Court. In the main her claims relate to:

A dispute between Ms Bahonko and the City of Casey Council concerning non-payment of rates by Ms Bahonko;
A dispute between Ms Bahonko and her former employers, Kosta Sterjov and La Kosta Child Care Centre and Kindergarten;
A dispute between Ms Bahonko and her former employers, Bodalla Aged Care Services and Moorfields Community, and agency of the Uniting Church in Australia, and a related claim by Ms Bahonko that she had been injured by Victoria Police when being escorted from her former workplace; and
A dispute between Ms Bahonko and the Nurses Board of Victoria in relation to the suspension of Ms Bahonko's registration as a registered nurse.

9 The s 21 application has, itself, spawned a plethora of applications by Ms Bahonko.

10 On 24 September 2010, Associate Justice Mukhtar made orders as to service of the s 21 application. Those orders were appealed by Ms Bahonko and dismissed by Sifris J on 8 November 2010.

11 On 23 September 2010, Ms Bahonko issued two summonses[2] seeking, amongst other things:

- summary dismissal of the "vexatious, malicious and frivolous application by demonstrated criminal and evidential Rob Hulls"; and

- a referral "of Rob Hulls and John Cain and Stephen Joseph Lee to DPP for criminal investigation".

12 On 22 October 2010, Ms Bahonko filed another summons with a "preliminary affidavit" seeking orders for dismissal of the Attorney's application and that "no Associate to Justice or Justices appointed by the Attorney-General are to sit in the application" and an injunction be issued to stop the directions hearing on 27 October 2010 from proceeding.

13 On 26 October 2010, Williams J dismissed Ms Bahonko's 22 October 2010 summons.

14 On 27 October 2010, Mukhtar AsJ made, amongst other things, procedural orders for the trial of the application and treated Ms Bahonko's summonses of 23 September 2010 as counterveiling summonses.

15 On 8 November 2010, Ms Bahonko issued a summons seeking an "injunction against the Attorney-General Rob Hulls from a continuation of proceeding SCI 2010 04419."

16 On 15 November 2010, Ms Bahonko filed an amended summons in which she added the Chief Commissioner of Police, the Premier of Victoria, the Minister for Health, the Minister for Education, the Minister for Police and the State of Victoria as second to seventh defendants.

17 On 14 December 2010, Osborn J made orders to the following effect:

- Fixing the s 21 application for trial on 6 June 2011; and

- Fixing the date of appeal from the orders of Associate Justice Mukhtar for 4 March 2011 (which was heard by Emerton J on that date).

His Honour also refused Ms Bahonko's application to restrain the Attorney-General from proceeding with the application.

18 On 31 March 2011, Emerton J ordered that the summary dismissal summons be dismissed.

19 On 1 April 2011, Redlich and Bongiorno JJA refused Ms Bahonko leave to appeal Osborn J's decision and dismissed a summons addressed to the Attorney-General, the former Attorney-General, the Chief Commissioner of Police, the Premier of Victoria, the former Premier of Victoria, and other Ministers in the State of Victoria.

20 On 2 May 2011, Ms Bahonko filed an application in the High Court for special leave to appeal against the orders of Bongiorno and Redlich JJA.

21 On 31 May 2011, Tate JA and Whelan AJA heard applications by Ms Bahonko relating to Emerton J's decision of 31 March 2011. Ms Bahonko's summons of 12 May 2011 was refused and the Court ordered that her notice of appeal dated 14 April 2011 be permanently stayed.

22 On 2 and 3 June 2011 (last Thursday and Friday), Ms Bahonko filed with the High Court two separate applications accompanied by supporting material. The first was a summons seeking a speedy hearing of her appeal against the orders of Bongiorno and Redlich JJA as well as a raft of injunctions. The second was a special leave application against the orders of Tate JA and Whelan AJA.

23 On Thursday 2 June 2011, Ms Bahonko filed a summons seeking an adjournment of the trial of the s 21 proceeding. She had on that day appeared before Justice Dixon in the Practice Court seeking an adjournment which was refused by his Honour on the basis of Ms Bahonko's failure to give appropriate notice to the Attorney-General.

24 Ms Bahonko was, on the adjournment application, represented by Mr Freadman as part of the Victorian Bar's Duty Barrister Scheme. His submissions were of considerable assistance and, again, the Bar is to be congratulated on its support for this vital community service.

25 The application for adjournment was accompanied by an affidavit annexing a medical certificate dated 2 June 2011 from a general practitioner, Dr Mark Overton. He said as follows:

This is to certify that I have examined Stanislawa Bahonko and I confirm that she is unwell with bronchitis and an exacerbation of PTSD and depression and eating disorder. I have referred her to a psychologist for assessment and treatment. She needs to rest in bed and will be unfit for work/school/usual activities from 02 June 2011 to 10 June 2011 inclusive. I will review her on 10 June 2011.

Kind regards,

Dr Mark Overton

26 I determined that Dr Overton should give evidence on this application, particularly given that Ms Bahonko had appeared before the Court of Appeal on Tuesday 31 May, before Justice Dixon on Thursday 2 June and had filed quite a substantial amount of material with the High Court on Thursday 2 and Friday 3 June 2011.

27 On the hearing of the adjournment application, Dr Overton was good enough to make himself available to give evidence by telephone. The substance of his evidence was as follows:

Ms Bahonko has at the present time two conditions which affect her ability to attend court. Firstly, bronchitis, which it is anticipated will improve with a course of antibiotics and rest, and should be resolved by next week.

Secondly, she is affected by her condition of PTSD and depression, and at times, signs of paranoia for which Dr Overton has recommended both psychological and psychiatric referral. On Sunday, 5 June 2011, she was seen at the Dandenong Hospital Emergency Department with bronchitis and signs of paranoia. Dr Overton now believes that she needs psychiatric as well as psychological assistance. She has in 2009 and 2010 undergone psychological treatment.

28 It does strike me as strange that Ms Bahonko was able, during the week in which she is said to be incapacitated, to attend court and to file complex and substantial documentation with the High Court. However, as her counsel ably demonstrated, this is a serious application and Ms Bahonko should be given every opportunity to be fit and well to put her case in response to that of the Attorney-General.

29 I am, of course, mindful of the fact that the s 21 application is dependent, primarily, upon an analysis of the material adduced from court files and is not a vehicle for rehashing previous decisions of courts adverse to the alleged vexatious litigant. So much is clear from what was said by the Court of Appeal in Kay v Attorney-General[3] and from what was said by Ashley J in Attorney-General (Vic) v Horvath, Snr[4]:

It is one thing to know what the word "vexatious" means. It is another thing to apply s 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s. 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.[5]

30 Notwithstanding that the focus of the trial will be on the court files, I think that Ms Bahonko should be given the opportunity to be in a good health so as to put submissions herself or to be able to instruct counsel to put submissions relevant to the application.

31 In those circumstances, and particularly in the light of the evidence of Dr Overton, the most desirable course is to permit Ms Bahonko to obtain appropriate psychological and psychiatric assistance. In my experience, this could not be achieved in any short time. By adjourning the hearing for a period of approximately eight weeks to 27 July 2011, Ms Bahonko will be given the opportunity to undergo appropriate treatment and to prepare her defence to the s 21 application.

32 In the event of the adjournment being granted, the Attorney-General seeks an interlocutory injunction restricting Ms Bahonko from instituting other proceedings, except with the leave of the Court.

33 It was not suggested by counsel for Ms Bahonko that the Court did not have the power to make an interlocutory order; rather, he argued that it should be for as limited time as is practicable in the circumstances. I should, nevertheless, set out the basis for the making of the orders sought by the Attorney-General.

34 First, I am satisfied that the Court has the inherent power to make such an order. Of particular relevance is what was said by the New South Wales Court of Appeal in Wentworth v Attorney-General (NSW).[6] Hope JA said as follows of s 84 of the Supreme Court Act (NSW) - analogous to s 21 of the Supreme Court Act (Vic):-

However s 84 is one of the sections of the Supreme Court Act which is not merely procedural but which affects rights or confers power. Undoubtedly the right or interest which it protects is the public right to and interest in the orderly administration of justice. That right and interest have to be balanced with the undoubted public interest in citizens being able freely to bring proceedings before the court. The latter right is not lightly to be interfered with, but it may be necessary to do so by reason of the public interest in the administration of justice. If proceedings for the making of a final order are properly before the Court, the Court is, in appropriate circumstances, entitled to make an interlocutory order to protect that public interest until the matter is finally resolved. In my opinion there is power in the Court to grant an interlocutory injunction pursuant to the Supreme Court Act, s 66(4), where proceedings have been brought pursuant to s 84 of the Act.

In order that the power be exercised, there must of course be evidence before the Court to show, prima facie, that the defendant is a vexatious litigant. There was evidence in the present proceedings and his Honour made a finding accordingly. That finding is not final, for the proceedings were interlocutory and the defendant had not given evidence. However the finding being made albeit on an interlocutory basis, there was jurisdiction to make the order.[7](emphasis added)

This submission is, in my view, quite inconsistent with the established principle that a court which is invested with power to grant relief, including a final injunction, to a party is empowered to grant interlocutory relief, including an interlocutory injunction, upon proof that there is a real question to be tried if the circumstances of the case so require. Nonetheless counsel argues that established authority dictates that result in the particular circumstances of this case.[8]

35 Second, the affidavits of Mr Stephen Lee, the solicitor acting for the Attorney-General, of 8 September 2010 and 2 June 2011 demonstrate that there is a prima facie case that Ms Bahonko has habitually and persistently instituted vexatious proceedings without reasonable grounds. Moreover, the public interest in the orderly administration of justice requires the making of such an order, particularly given the history of this application and the attempts by Ms Bahonko to frustrate its determination.

36 The terms of the order will not preclude Ms Bahonko from prosecuting her applications in the High Court against the orders of Osborn J and Emerton J in the High Court, but will require her to obtain the leave of the Court to institute any other proceeding prior to the determination of the s 21 application.

37 Third, it is also, I think, in Ms Bahonko's interest to make the order sought. She will be able to undergo the treatment recommended by her general practitioner which should assist in her being able to present her case (or give instructions) at the trial on 27 July. She will also have time, it seems to me, to focus on this application rather than be distracted by a variety of other applications - all of which are connected with the hearing on the merits of the s 21 application.

38 In my view, it is appropriate and in the public interest to make the orders sought by the Attorney-General. The trial of this application can, hopefully, then proceed on 27 July with no further disruption or delay.

The trial of this proceeding be adjourned to 27 July 2011.
Until the trial and determination of this proceeding or further order, the defendant is restrained by injunction and an injunction is hereby made restraining the defendant from commencing or continuing any and all legal proceedings in:

2.3 a tribunal constituted or presided over by a person who is a barrister and solicitor of this Court;

without first seeking and obtaining the leave of the Court, inferior court or tribunal.

The parties have liberty to apply on reasonable notice.
The injunction granted in order no. 2, does not inhibit the defendant from making application under the liberty reserved in order no. 3.
Costs be reserved.

[1] "the s 21 application".

[2] Collectively referred to as the summary dismissal summons.

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